Legal experts have demanded the implementation of societal and legal solutions that address the problem of banning children, especially infants, from traveling abroad with their mothers, and requiring the approval of their guardian, especially with the procrastination and refusal of many fathers to give written consent to their divorcees, which was stipulated by the law to allow the child in custody to travel abroad.
They stressed the importance of accelerating implementation procedures in the courts to respond to the request of the custodial mother, who wishes to travel with her children abroad, and activating the role of family guidance committees in consolidating understanding between divorced persons to achieve the interests of their children. They proposed limiting the application of the “child travel ban except with the approval of their guardian” to non-citizen women, and establishing guarantees to ensure the return of children after their travel.
Divorced custodial mothers face a problem due to their inability to take their children on a travel trip or to visit their country – if the mother is a foreigner – or any other country, due to the law requiring them to obtain written approval from the child’s guardian, which is impossible to achieve due to the parents’ stubbornness and refusal. Or their delay in giving them written consent to do so.
The interest of the child in custody
Courts in the country heard cases brought by mothers, in which they demanded that they be allowed to take their children with them on travel, after their children’s fathers refused to allow them to do so.
In a case heard by a court, a mother requested permission to travel abroad with her infant, who is less than two years old, to perform Umrah, accompanied by her parents, and then to the United Kingdom, to carry out certain matters, and then return it to him. She expressed her willingness to provide a guarantee or guarantee until her return, pointing out that the father of the child in custody refused to have his child travel with her outside the country, and the “Family Guidance” was unable to reconcile them.
The court rejected her request based on the Personal Status Law, which stipulates that “the custodian may not travel with the child outside the country, except with the written approval of the guardian, and if the guardian refuses to do so, the matter is referred to the judge.”
In a second case, a foreign mother filed a grievance before the court on the basis that her husband obtained from the court’s urgent matters judge an order on a petition to prevent her and her six-month-old infant son from traveling, due to marital disputes between them, requesting that the order be cancelled, which was supported by the court. She stressed that “freedom of travel and movement is guaranteed to every person in accordance with the state’s constitution, and there is no objection to preventing the custodian during her travel from caring for the child if the person in custody is in need of her custody, such as a child.” The baby.”
She emphasized in the rationale that “the child in custody is at the age of breastfeeding, and at this age he is indispensable for his mother’s care, and that his interest lies in accompanying her, and that her moving to her country, which is at the same time the father’s country, does not prevent the latter from following up on the affairs of the child and reading about it.” His condition. If the father fails to issue written consent for the child in custody to travel with his mother arbitrarily, to the detriment of her and the child, and in a way that is not consistent with the interest of this child that is recognized by Sharia law, then the ruling prohibiting his travel with his mother will be defective as it violates Sharia and the law.
In a third case, a father filed a lawsuit against his divorced wife, requesting that she and his six-year-old child move to his country. He also requests, if she refuses, that her custody be dropped.
Procedures take time
Lawyer Ali Muhammad bin Tamim stressed the importance of reviewing the article which stipulates that “the custodian may not travel with the child outside the country except with the written approval of the guardian, and if the guardian refuses to do so, the matter shall be referred to the judge.”
He stated that there are citizen and resident mothers who suffer, due to this legal article, from being unable to take their children abroad, whether for tourism, treatment, study, or other purposes, indicating that the guardian often refrains from giving approval for the child in custody to travel with his mother or granting her his passport, which is the matter. Which prompts the custodian to apply to the court.
He pointed out that the implementation and litigation procedures in such matters take a long time, especially since the father procrastinates, refuses to attend, and evades receiving the court’s announcement, until the judge makes his decision to decide on the custodial mother’s request for her children to travel with her, whether with approval or disapproval.
Bin Tamim called for the speedy implementation of implementation procedures in the requests of custodians wishing to travel with their children, and requiring them to ensure the return of the children by submitting travel tickets and travel invoices that indicate the date of travel and return, within a specific period of time.
He said: “I propose to reformulate the legal article prohibiting children from traveling with their mothers, by limiting its application to non-citizen women,” considering that “comprehensiveness is misplaced, and if the matter is related to the father’s fear that the mother will run away with his children and not return, then it is unrealistic for the citizen mother.” Which will definitely return to the state.”
Bin Tamim believed that the problem of the child in custody’s refusal to travel with his mother falls within the scope of intrigue between divorced persons, calling on the parents to put the interests of the child in custody before their personal interests, and to work and come to an understanding together to provide full care for their children.
Mutual revenge
For his part, the legal advisor, Dr. Youssef Al-Sharif, stressed the importance of activating the role of family guidance committees in promoting dialogue and understanding between divorced persons in mutual disputes over children, including the problem of prohibiting the child in custody with the custodian from traveling abroad except with the approval of the guardian, as many parents are stubborn and intransigent in Giving written consent to their divorcees, preventing them from taking their children with them while traveling abroad, whether for the purpose of an excursion or otherwise.
Al-Sharif pointed out that many cases of divorced persons in this regard fall within the framework of mutual intrigue and revenge, without regard to the interests of the child in custody, especially if he is an infant and his mother wants to take him with her abroad, while the father refuses this matter.
He added: “The legislator took the right of the custodian and the mother to move the child to another place in the country, if the interest of the child is what matters only, and there is nothing in his travel that conflicts with that, and he stipulates only the conditions that meet the child’s interest, that is, that the travel should not be disruptive.” By raising him, or disrupting his studies. He also stipulated that the intention of the move should not be merely to harm the father by keeping the child away from him, and as a matter of harm, his knowledge of his son’s conditions – after his move – would cost him an unusual expense or hardship.”
Al-Sharif explained that “the Personal Status Law established a legal framework that regulates this issue, and obligated the guardian of the child in custody, whether he is a father or someone else, to take care of him and inform him of his conditions, and he cannot do that if the custodian travels with him to another country. Therefore, it has been stipulated that the custodian may not travel with the child in custody outside the country, except with the approval of his guardian. In order to end the dispute over obtaining permission or not, the article stipulates that the approval be in writing, so the custodian does not have the right to travel with the child and claim that the guardian has given her verbal permission.
But what should be done if the guardian refuses to give that written consent? Al-Sharif says, “The judiciary is the authority authorized to decide on this aspect, because such a case requires research into the justifications put forward by the custodian for traveling with him and the obstacles that forced the guardian to refrain from written approval for the travel. Just as the judge intervenes in giving permission to marry a marriageable girl, if her guardian prevents her, so he intervenes in the matter of a child in custody traveling with his custodian, if the guardian refuses to agree to that due to obstinacy or scheming.
Conditions for the custodian’s travel
He continued, “The text in this article prohibits the custodian from traveling with the child outside the country at all, even if she wants temporary travel that is not intended for permanent residence, such as excursion travel, medical treatment travel, or visitation travel for a relative, for example.” A fortiori, written permission must be obtained when the child in custody travels with the intention of residing outside the country.
He pointed out that the text of Article 150 states that “it is not permissible for the mother, upon the establishment of marriage or the waiting period of revocable divorce, to travel with her child or move him from the marital home except with his father’s written permission, and it is permissible for the mother, after separation, to move him to another country in the state, if he is not in This transfer is a violation of the upbringing of the child, and it does not harm the father, and the transfer does not cause him extraordinary hardship or expense to review the conditions of the child.
He explained that this article clarifies that the mother does not have the right to travel with her child or move him from the marital home except with his father’s permission, in writing, and this ruling is supported by the fact that the wife, in the event of marital status or the waiting period of revocable divorce, has no right to move except with her husband’s permission.
The second paragraph of the article stipulates that after separation, the custodian may transfer the child in custody to another country if the transfer does not disrupt the child’s upbringing, is not harmful to the father, and does not entail the cost, hardship, or extraordinary expense of checking on the child’s conditions. The Hanafi school of thought regarding this matter is that it is permissible for the custodian to transfer the child if she moves to her own country and has married there. For this, they stipulated that the town be close enough that the father could, in one day, check on his son’s condition and return to his home. They forbade moving a child from a city to a village, even if it was nearby. The Malikis generally do not approve of a custodian moving a child, even his mother, except under conditions, and they forfeit her right to custody when she travels if it is not an infant. They stipulated conditions in the travel of the custodian or custodian that forfeits custody if it is not an infant. It is investigated in travel in terms of distance, security and purpose of travel, and the Shafi’is and Hanbalis are similar to that.
The nationality of the incubator
In turn, the family advisor, Issa Al-Maskari, called for setting strict controls governing the issue of children traveling abroad with their mothers, in a way that guarantees their return again to their parents’ place of residence, and without prejudice to the rights of one of them (the mother or the father), whether with regard to custody, vision, or guardianship. Stressing that the existence of a relationship based on mutual respect and appreciation between the parents after divorce and their conviction to put the interests of the child in custody before their own personal interests, is the main approach to resolving this problem.
He pointed out that many family disputes that occur after divorce are malicious and vindictive between spouses, and this relates to the disagreement over the extent of the custodial mother’s right to take her children with her to travel abroad, whether for the purpose of an outing, treating someone, or otherwise, as parents may reject this request. Out of revenge or plotting against her, or out of fear that she might have other goals, which are to take away the children and never bring them back.
He pointed out that some female custodians may obtain written approval from their divorced woman for the children to travel abroad with them, but some of them may not return again, especially if they hold a nationality other than that of the husband, who is later surprised by her marriage to another, and thus loses his right to custody. And the vision.
He pointed out the importance of taking into account, when setting regulatory controls for this problem, the differentiation between cases. There is a citizen mother who may be from the husband’s family, such as a cousin or maternal uncle, and has a family extension within the state, such as the father and mother, in a way that makes it impossible for her to leave. With her children abroad and never returning. There is the foreign mother who is of the same nationality as the father, as their fate is to return the children to their country, and there is the foreign mother whose nationality is different from the nationality of her husband, and this constitutes the most difficult case, in which disruption and damage may occur when she is allowed to travel with the children to her country, due to the possibility of not Her return again, whether to the husband’s place of residence or his country, thus losing his right to see his children.
Legal experts stressed the importance of accelerating implementation procedures to respond to the custodial mother’s request.
A mother requests permission to travel abroad with her infant to perform Umrah.
A father requests that his ex-wife and his child move to his country…and if she refuses, her custody will be dropped.
Article (151)
If the custodian is other than the mother, she may not travel with the child, except with written permission from his guardian.
The guardian – be it a father or someone else – does not have the right to travel with the child during the period of custody, except with written permission from the person in whose custody he is.
It is not permissible to revoke the custody of the adopted mother simply because the father moves to a country other than the country in which the custodian resides, unless the move is for the purpose of stability, is not harmful to the mother, and the distance between the two countries prevents him from seeing the child in custody and returning on the same day by regular means of transportation.
